XCHRX LUK SUET SHI CISSY v. WOO CHIN MAN

HCMP345/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.345 OF 1999

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D E C I S I O N

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The wife's application

1. The Applicant, Luk Suet Shi Cissy, on 18th January 1999, obtained an injunction on an ex parte basis against her husband pursuant to the Domestic Violence Ordinance ("the Ordinance"). Today is the return day of the inter-partes summons which seeks, among other things, the continuation of the order.

The husband's application to discharge and challenge to jurisdiction

2. Ms To, Counsel for the husband, seeks to discharge the order and also challenge the jurisdiction to grant the relief sought in the inter-partes summons. The arguments relating to these two issues are related and I will deal with them first.

3. Ms To argued that the order was irregular because the Applicant was not required to give an undertaking as to damages or to issue and serve a writ or originating summons. Further, the order did not inform the husband that he could apply for discharge or variation of the order. To date, no writ or originating summons has been issued. Ms To referred to O.29, r.1(1) of the High Court Rules in which it is provided that an application for the grant of an injunction may be made by any party to a cause or matter. While an injunction may be issued before the cause of action has begun, the injunction may be granted on terms providing for the issue of the writ. She also referred to the speech of Lord Diplock in Siskina (Cargo Owners) v. Distos Compania Naviera S.A. [1979] AC 211 at 256, letters C to E.

The Ordinance

4. Section 3 of the Ordinance expressly provides for the granting of an injunction irrespective whether any other relief is sought in the proceeding. The jurisdiction to grant an injunction comes from the Ordinance. The cause of action is based on the Ordinance itself.

Originating process

5. I accept that in the High Court, a proceeding is usually commenced by a writ or originating summons or petition, in other words, there must be an originating process. None of these is issued in the present proceeding. What the Applicant has issued is an ex parte summons and the High Court Registry has treated the proceeding as a High Court Miscellaneous Proceeding which is the form of proceeding usually commenced by an originating summons.

6. In my view, the absence of a writ, or originating summons, or petition is not fatal to the Applicant's claim. The ex parte summons issued in this case must, for all intents and purposes, be treated as an originating process. It contains an application for the very relief that the Applicant had obtained before me and intends to continue in the inter-partes application. The Respondent is simply not prejudiced by the absence of a document entitled writ or originating summons. I will grant leave to the Applicant to amend the ex parte summons so that it may be renamed the originating summons, together with the appropriate amendment to the contents as well.

Undertaking as to damages

7. The absence of an undertaking is, in my view, not fatal. It is clear in other situations an undertaking as to damages is not a mandatory requirement : see Note 29/L/27 of the Supreme Court Practice 1999. In a domestic violence case, I cannot imagine what possible damage will be suffered by a respondent if an injunction is granted. In any event, the Respondent has not indicated if he has suffered any damages by reason of my order. I will reserve my view, until full argument is heard, whether such an undertaking is in fact required in an application under the Ordinance.

Provision for discharge or variation

8. While the better practice is to include in the order the provision relating to application for discharge or variation of the order, again the absence of such a provision is not fatal in this case. The solicitor for the Respondent was approached on Wednesday, two days after the order was served. If damages are likely to be sustained, one would expect an application to discharge or vary the order would then be made.

Merits of ex parte application

9. As to the merits of the application for the ex parte order, the Applicant is not merely suffering from tension or inconvenience. There is evidence of violence by the Respondent towards the son to the extent that the Applicant has to remove the son from home. Viewed in the context of the history of violence towards the Applicant herself in the past, the application clearly comes within the ambit of the Ordinance.

Practice in the Family Court

10. I have, in fact, make enquiries with a judge of the Family Court who informed me that applications for injunction under the Ordinance are frequently made in the Family Court. The practice in the Family Court is that the Applicant is not required to issue a writ or originating summons. Further, the practice in the Family Court is that the Applicant is not required to give an undertaking as to damages nor is there provisions in the order that application to discharge or vary the order can be made. Whatever the practice may be in the District Court, I have expressed my views as to what should be done in the High Court.

Conclusion

11. In the circumstances, I rule that the ex parte order should not be discharged and I have jurisdiction to deal with the inter-partes summons.

[Submissions on directions]

12. I will order :

(i) The Respondent to file the affidavit within seven days and I grant leave to the Applicant to file affidavit in response within seven days thereafter;

(ii) I will, pursuant to s.40 of the District Court Ordinance, transfer the matter to the District Court. This is agreed by the parties.

(iii) I will adjourn the inter-partes summons to a date to be fixed by the Registrar of the District Court. I will respectfully request the Registrar to list the hearing at the earliest date.

(iv) The Applicant is required to file and serve the amended ex parte summons and inter-partes summons on or before 4 p.m. on Monday, 25th January 1999. Thereafter, the matter is to be transferred to the District Court.

(v) I will continue paragraphs 1 and 2 of the Order I have made on 18th January 1999 until the determination of the inter-partes summons or until further order with the provision that the Respondent be at liberty to return to the premises on Saturday, 23rd January 1999 between 5 p.m. and 9 p.m. to collect his personal belongings.

(vi) I will order costs to date of this application be borne by the Respondent to be taxed on the District Court scale, save that the costs of amending the ex parte summons and inter-partes summons be borne by the Applicant herself.

Comment

13. I would like to comment that the Ordinance provides that the Court of First Instance of the High Court also has jurisdiction to deal with applications under the Ordinance in case of urgency. When the matter came before me at 5 p.m. on 18th January 1999, I did raise with Counsel for the Applicant the question of forum of this application. Upon hearing Counsel, I was satisfied that the matter was one of urgency regarding the child of the family. However, practitioners are reminded to heed the provisions of the Ordinance which clearly intend the District Court to be the proper forum.